Monthly Archives: December 2015

NLRB OK’s Off-Duty Access Policy; KO’s its Enforcement

Maxine NeuhauserIn a decision with ramifications for employers in health, retail, hospitality and other industries serving the public, on October 22, 2015 in a decision, Marina Del Rey Hospital, 363 N.L.R.B. No. 22, 2015 BL 347693, the NLRB confirmed the legality of policies barring employees from the premises when not on duty, which contain an exception permitting off-duty employees to be on the premises as members of the public, e.g., as a patient or a visitor.  The Board found, however, that enforcement of the facially neutral policy to certain employment restrict protected activity constitutes an unfair labor practice. The decision addressed the policy stated in the Marina Del Rey Hospital’s employee handbook stating:

Off-duty employees may access the Hospital only as expressly authorized by this policy. An off-duty employee is any employee who has completed or not yet commenced his/her shift.

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Federal Government introduces Insolvency Law Reform Bill 2015

The Insolvency Law Reform Bill 2015 has been introduced into Parliament as part of the Australian Government’s strategy to modernise and strengthen the nation’s insolvency and corporate reorganisation framework.

The Bill comes at a time when the Government has announced major changes to insolvency law as part of its innovation package concerning areas like insolvent trading as well as default periods for personal bankruptcies. Those changes, however, appear only to be in the embryonic stage and seem to have overshadowed other important reforms which the Government has slipped into Parliament just last week.

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Transfers of Personal Dada to the USA – Cancellation of European Commission Decision 2000/520/EC

Transfers of personal data from EU member states to the USA were affected by a recent decision of the European Court of Justice (ECJ) regarding the Safe Harbour programme for the transfer of personal data from the EU to the USA. The European Court of Justice decided in case C-362/14 (Maximilian Schrems v. Data Protection Commissioner, Ireland) that Commission Decision 2000/520/EC on the adequacy of the protection provided by the safe harbour privacy principles for transfers of personal data to the USA is invalid.

This means that if personal data is transferred from any EU member state to the USA on the basis of the above mentioned Commission Decision, the process must be reassessed in accordance with the local legislation on personal data protection. For example, the Czech Office already published its recommendation in connection with the ECJ decision in the Schrems case. Even before the ECJ decision, it was recommended consulting each case of the transfer of personal data based on safe harbour principles to the USA with the competent local authority before the transfer.

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What is a marriage-like relationship?

Over the last number of decades, families and relationships have become increasingly more complicated, often making estate matters more complex and litigious. For example, when a person claims to be the spouse of a deceased, and the family, or other beneficiaries, either do not recognize them as a spouse or were not aware of a relationship at all, frequently litigation will be the result. Litigation will often take the form of a wills variation claim by the person alleging to be a spouse.

Under s.60 of the Wills, Estates and Succession Act (WESA), children and spouses of the deceased can bring a claim for variation if proper maintenance and adequate provision was not made for them in the will of a deceased. The first hurdle for these parties is to establish themselves as a “spouse”, entitling them to make such a claim. Under WESA, and the former Wills Variation Act, a spouse is defined as someone who was married to the deceased or had been living with the deceased in a “marriage-like relationship” and lived in that relationship for at least 2 years. How the law determines what is “marriage-like” therefore becomes quite important.

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“TAX TIPS: Changes are coming to IRS partnership audits,” Carl Grassi for Crain’s Cleveland Business

The budget bill signed by President Barack Obama on Nov. 2 included a significant change in the way IRS partnership audits will be handled.

Partnership audits have become a more pressing issue for the IRS as more businesses are taxed as partnerships, including limited liability companies.

Because the IRS must generally assess and collect any deficiencies from the individual partners after a partnership audit, enforcement can be difficult.

The new rules will allow the IRS in most cases to assess any additional tax against the partnership itself instead of having to proceed against the individual partners.

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Clark Wilson acts for Pure Multi-Family REIT LP in closing US$39.1 million bought deal

Clark Wilson acted for Pure Multi-Family REIT LP (Pure) (TSXV: RUF.U, RUF.UN, RUF.DB.U; OTCQX: PMULF) in closing its bought deal public offering of 7,250,000 Class A units, inclusive of 750,000 Class A units issued pursuant to the partial exercise of the over-allotment option, at a price of US$5.40 per Class A unit (CDN$7.19 per Class A unit) for total gross proceeds of US$39.1 million. Vikram Dhir and James Speakman led the Clark Wilson deal team. See Pure’s news release for more information.

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Payment in construction contracts: what have we learnt?

Over the last year we have seen two sets of three cases[1] on the issue of payment provisions in construction contracts.  Payment in construction contracts on projects in Great Britain is an issue underpinned by a statutory framework[2] intended to improve cash flow to the construction supply chain by the inclusion of an adequate payment mechanism in construction contracts and the service of certain notices at key stages in the payment cycle.  A failure on behalf of an employer to serve a relevant notice in cases where a contractor’s application for payment is not agreed can result in an automatic right to payment in full of the amount claimed without consideration of the underlying merits of the claim.

Matters are complicated by the fact that in addition to the statutory framework and the general principles that apply, payment provisions in standard form contracts can vary immensely.  In the first set of cases for example, there was some debate as to how two of the decisions were to be applied as it had been argued that they appeared inconsistent.  The court subsequently clarified that the difference resulted from the manner in which interim payments and a payment upon termination were dealt with under the JCT Design and Build Contract.  In the absence of an employer serving a payment or pay less notice, the amount of an interim payment shall be “the sum stated as due in the Interim Application” whereas the payment upon termination in the absence of the required notices shall be “the amount properly due in respect of the account”.  Close attention is therefore required to the payment provisions in the relevant contract.

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Week of December 7, 2015 on ILNToday – A Roundup!

roundupHappy Friday all! We’ve been busy here at the ILN wrapping up our 2016 planning (LOTS of exciting things to come), traveling back and forth to my favorite city, London, getting ready for our 2016 conferences, and much more. I know you’re all working on end-of-the-year work and client business, but take a few moments to see what the top news around the Network is before you head out for the weekend! 

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Chinese companies doing business in the U.S. build barriers to legal remedies

While an increasing number of Chinese companies are doing business in the U.S., China has nevertheless built a legal firewall around its financial services firms by refusing to acknowledge the jurisdiction of U.S. courts and regulatory agencies.

This makes it exceedingly difficult to serve Chinese companies in the U.S. with discovery, subpoenas and other documents seeking a reply. These challenges were spelled out in a May 5 report of the U.S.-China Economic and Security Review Commission, a government agency created by Congress in 2000 to oversee the national security implications of the two nations’ bilateral trade and economic relationship.

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McDonald Hopkins Government Strategies Advisory: This Week in Washington — December 11, 2015

Today, the House will pass a short-term funding bill to keep the government open through Dec. 16 of this year after failing to reach agreement on an omnibus spending bill. The Senate passed the same short-term CR yesterday.

The short-term CR not only allows Congress more time; it also avoids forcing members to stay in D.C. over the weekend.

Congress has struggled to come to a bipartisan deal over an omnibus spending bill largely because of partisan fighting over possible policy riders that Republicans are seeking to have included in the measure.

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